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EACC Insights: Scaling The “Invisible Wall”: Considerations for U.S. and Foreign Employers Navigating the U.S. Visa Landscape in the Wake of the “Buy American, Hire American” Executive Order

by Dana DiRaimondo and Sara Schroeder, D & S Boutique Business Immigration

On April 18, 2017, President Trump signed the “Buy American and Hire American” (BAHA) Executive Order with the intention of making changes to the U.S. visa program to “protect the jobs of American workers. On its face, BAHA called for various government agencies to review existing regulations and policies, suggest reforms to the H-1B visa system, and propose new rules and guidance to combat visa fraud and abuse. The expectation immediately following the signing of BAHA was that it could potentially result in proposed changes to current regulations and policies in the form of updated policy guidance and new regulations, all with a reasonable amount of notice to, and input from, impacted stakeholders, including employers, foreign nationals, and the immigration bar.  The reality was much different.

In the 16+ months following the signing of BAHA, we have seen a variety of changes with respect to visa adjudications that are a direct response to BAHA, often with little to no notice to impacted stakeholders. These include include the publication of various sub-regulatory United States Citizenship and Immigration Service (USCIS) Policy Memoranda, as well as less formal adjudication shifts in which new restrictive legal standards are being used in case adjudications.. This article outlines some of the most significant changes in the wake of BAHA and includes some practical guidance for employers looking to hire foreign talent in the United States.

Changes to Policy and Practice Resulting from BAHA

Specialty Occupations Challenges to H-1B Visas

Although BAHA has yet to result in any successful immigration legislation formally amending the H-1B visa program, the impact of BAHA is nonetheless being felt in the increased number of challenges to H-1B visa petitions, particularly those seeking to sponsor entry-level workers and those which list several different, but related, acceptable fields of study (e.g., accepting degrees in Mathematics, Engineering, or Computer Science for a Software Engineer). 

The H-1B visa requires that the sponsored employee be filling a specialty occupation (one that requires a specialized body of knowledge typically obtained through a bachelor’s degree in a related field).  It is well-settled that both entry-level roles and roles for which an employer would accept different but related degree fields qualify as specialty occupations that can be legitimately offered to foreign workers under the H-1B program. However, these entry-level and specialty occupation H-1B challenges, which resulted in a 45% increase in visa challenges for the 2017 fiscal year, are creating additional hurdles for H-1B employers that have no basis in the immigration statute or regulations and can therefore only be linked to BAHA. The administration has even gone so far as to identify certain entry-level occupations, most notably Computer Programmers, as generally not qualifying for the H-1B visa, despite the fact that H-1B visas have routinely been awarded to individuals in these occupations in the past provided the position was sufficiently complex to require the attainment of a bachelor’s degree.

There are also several current and anticipated immigration related regulations on the DHS regulatory agenda which includes additional changes to the H-1B program including formal changes to the definition of “specialty occupation” as well as changes to the H-1B lottery system.

Additional Policy Memorada Impacting Visa Adjudications

Perhaps the most glaring change following the signing of BAHA has been the issuance of USCIS Policy Memoranda which will significantly impact visa adjudications. On July 5, 2018, USCIS released a memo, which provided USCIS the ability to place foreign nationals in removal (deportation) proceedings following the denial of any application or petition where the foreign national no longer has underlying immigration status as a result of the denial (for example, where an individual’s nonimmigrant status lapses while an adjustment of status application is pending and that application for adjustment of status is ultimately denied, or where an individual applies for a change or extension of status and the request is ultimately denied after the individual’s current nonimmigrant status has expired). This is expected to have broad and sweeping consequences that will require visa petitions, applications, extension, and renewals to be carefully timed, considered, strategized to minimize any potential negative immigration impact to foreign nationals.[1]

Several days later, on Friday, July 13, 2018, USCIS posted a new memo that will take effect on September 11, 2018 and directs that USCIS officers are no longer required to issue an Requests for Evidence (RFEs) or Notices of Intent to Deny (NOID) before denying a case, rescinding previous USCIS policy.  Under the new guidance, while USCIS adjudicators may still issue RFEs, they are no longer required to do so, leaving petitioners and applicants more limited ability to cure deficiencies in a case and providing foreign nationals with no notice of USCIS’s intent to deny a petition so that they can make plans to depart the United States. The expectation is that this new policy will have an impact on the number of cases the agency ultimately denies as well as the number of foreign nationals placed in removal proceedings following a denial.

Prior to this, in October 2017, USCIS issued a memo rescinding a prior policy permitting USCIS adjudicators to give deference to certain previously approved nonimmigrant visa petitions. Previously, an individual in the U.S. on a work visa who was requesting an extension was provided some level of assurance that USCIS would take the fact that they had previously approved a visa for the foreign national into consideration when adjudicating an extension request. However, with the rescission of this deference policy, employers can expect more unpredictability and tougher scrutiny for visa petitions going forward, even where the facts remain identical to the previously-approved filing.

Another memo, released in February 2018, increases the amount and type of documentation that must be submitted in support of H-1B petitions involving third-party worksite placement. Common examples of such placements include consultants placed at a client site in order to provide consulting services, certain staffing agencies/IT service vendors, and some subcontractor arrangements. The Memo increases the amount and type of documentation needed to successfully submit an H-1B petition for an employee working at a client site or other third party placement scenario.

Consular Adjudications

Although BAHA explicitly targets the H-1B visa, consular officers have been instructed to take BAHA into consideration when deciding whether to grant many other nonimmigrant visa applications (including  L-1, E-1, E-2, and O-1 visas), stating that visa issuance must be “within the spirit” of BAHA’s goals to “protect the interests of United States workers.”  Such broad statements permit consular officers wide discretion in determining whether visa issuance is “within the spirit” of BAHA and have the potential to result in visa denials where an applicant meets all the legal requirements for the visa as outlined in the immigration statute and regulations but, in the consular officer’s subjective opinion, visa issuance is not “in the spirit” of BAHA.

Suspension of Interview Waivers and Increased Processing Times

In the wake of BAHA, green card applications have also experienced significant processing delays. Historically USCIS has waived the in-person interview requirement for individuals receiving a green card based on employer sponsorship, given the low instances of fraud associated with these types of filings. However, starting in October 2017, interviews were reinstated for employment-based green card applicants and their family members, which has significantly increased the workload for USCIS staff and resulted in substantial delays in the processing of green card applications, with processing times doubling and tripling over the course of the last year.

Increased Enforcement and Interagency Information Sharing

The immigration service and several other federal agencies are increasingly sharing information to detect inconsistencies in representations made in visa filings submitted to the immigration services and other documentation submitted to various other agencies such as the Department of Labor (DOL) and Internal Revenue Service (IRS). In addition, the immigration service and DOL are increasing on-site inspections of employer worksites as a means of detecting and deterring visa fraud and abuse.  As a result it is critical that employers ensure consistency in the information provided to the immigration service and other federal agencies and that they put in place internal audit and document retention policies to ensure that all required records and files are accurate and up-to-date in the event of a site inspection.

Guidance for Employers

Employers and entrepreneurs need to keep these policy changes in mind when identifying personnel who may qualify for U.S. visas and for setting timelines for onboarding or transferring employees since processing times have and will continue to significantly increase. Identifying key personnel for transfers to the U.S. and hiring U.S. workers who require visa sponsorship will require advanced planning and an understanding of  the policy changes and new adjudication trends both at USCIS and at the U.S. consulates overseas. Employers must ensure visa petitions and applications, including  extensions requests, include extensive supporting documentation, particularly when trying to demonstrate that an entry-level position qualifies as a specialty occupation. In addition, employers are encouraged to initiate visa extension as early as possible in the filing window, to continue to extend nonimmigrant visas even when foreign nationals have received work authorization based on a green card filing, and to request expedited visa processing where available in an effort to prevent the foreign national’s current visa status from expiring before their extension is adjudicated.  Finally, when applying for visas at a U.S. consulate applicants should be prepared to refute assertions that issuance of the visa is not “in the spirit” of BAHA, highlighting any positive economic and/or employment impact on the United States.

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[1] On July 30, 2018 USCIS announced that this Policy Memorandum has been temporarily suspended in order to allow for the issuance of operational guidance regarding implementation of the new policy. USCIS did not provide a timeline for when the NTA Issuance policy will ultimately become effective.